Riley v Queensland Building and Construction Commission - [2019] QCAT 121

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Riley v Queensland Building and Construction Commission [2019] QCAT 121

PARTIES:

TRACEY RILEY
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR322-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 May 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The decision of the Queensland Building and Construction Commission dated 28 September 2017 is set aside and substituted with a decision to approve a claim under the Queensland Home Warranty Scheme on the basis that residential construction work is taken to have started.

CATCHWORDS:

INSURANCE – PROPERTY AND PECUNIARY LOSS INSURANCE – DOMESTIC BUILDING CONSTRUCTION INSURANCE – where insurer approved claim to maximum refund of deposit only – whether work ‘physically starts’ – where provision to be read in way that is practical, as a whole and intending to achieve balance between outcomes – where purposive interpretation preferred – where requirements of provision for whether erection or construction of footing system or slab ‘physically starts’ will vary according to whether work is for new build or renovation of existing home – where contract to renovate existing home – where contract included footing system or slab – whether work started on erection or construction of footing system or slab – where builder installed props to lift house – where installing props to lift house was integral part of erection or construction of footing system or slab – whether ‘reviewable decision’ – where substantive effect of decision to allow a claim under statutory insurance scheme was to not allow claim to maximum extent permitted by law and therefore disallow claim in part – where purpose of statutory insurance scheme is to provide assistance to consumers

Acts Interpretation Act 1954 (Qld), s 14A
Queensland Building and Construction Act 1991 (Qld),
s 3, s 67X, s 86
Queensland Building and Construction Regulation 2003 (Qld), s 26L
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422
Harley v Department of Justice and Attorney-General [2012] QCAT 620
K & S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (1985) 157 CLR 309
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
King v QBCC [2014] QCAT 471
Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494
Mills v Meeking (1990) 169 CLR 214
Norton v Long [1967] VR 221
O’Brien v Gladstone Regional Council [2015] QCATA 82
Omae v QBSA [2012] QCAT 80
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355
Tucker v QBCC [2017] QCAT 80
Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337
Zappala Family Co. Pty Ltd v Brisbane City Council [2014] QCA 147

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is this application about?

Tracey Riley understandably feels let down by the system designed to provide remedies for home owners who have incomplete or defective building…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 121
Decision Date: 1 May 2019

CaseChat Overview and Summary

In the case of Riley v Queensland Building and Construction Commission, the dispute centred around the interpretation of a statutory insurance scheme provision relating to a domestic building construction claim. The applicant, Riley, sought to have their claim for maximum refund of the deposit approved, while the Queensland Building and Construction Commission (QBCC) argued that the work had not 'physically started' as required by the insurance policy. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the QBCC's decision to disallow the claim in part was reviewable under the relevant legislation.

The primary legal issue was whether the QBCC's decision to disallow the claim in part constituted a 'reviewable decision' as defined in the Queensland Building and Construction Commission Act 1991. Specifically, the court needed to interpret section 86(1)(h) of the Act, which refers to a decision to disallow a claim wholly or in part, and determine if the QBCC's decision fell within this scope. The QBCC argued that disallowing a claim in part was limited to denying liability, whereas the applicant contended that it included accepting liability but declining to pay the full amount claimed. The court had to consider the context of the statutory provision, legislative history, and previous authorities to resolve this interpretative issue.

The QCAT found that the QBCC's decision to disallow the claim in part was indeed a reviewable decision under section 86(1)(h) of the Act. The court rejected the QBCC's narrow interpretation, holding that disallowing a claim in part could involve accepting liability but declining to pay the full amount claimed. The tribunal emphasised a purposive interpretation of the statutory scheme, which aimed to provide assistance to consumers. The court held that the QBCC's decision to pay only a reduced amount, based on the reduction in value of the residence, effectively disallowed the claim in part. Consequently, the QBCC's decision was reviewable.

The tribunal set aside the QBCC's decision dated 28 September 2017 and substituted it with a decision to approve Riley's claim under the Queensland Home Warranty Scheme, on the basis that residential construction work was deemed to have started. This outcome ensured that Riley's claim was assessed in accordance with the statutory insurance scheme's intent to assist consumers in domestic building construction disputes.

Orders

Orders of the court

The decision of the Queensland Building and Construction Commission dated 28 September 2017 is set aside and substituted with a decision to approve a claim under the Queensland Home Warranty Scheme on the basis that residential construction work is taken to have started.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 86 relevantly provides:86 Reviewable decisions(1) Each of the following decisions of the commission under this Act is a reviewable decision – …(g) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work; (h) a decision to disallow a claim under the statutory insurance scheme wholly or in part.[22][22]Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(h). To support its submission, the Commission cited a passage[23] from Tucker v Queensland Building and Construction Commission[24] as follows:A claim would only be allowed in part if the claim related to two or more insured events and the insurer accepted liability in respect of one or more events but denied liability in respect of one or more other events.[25][23]QBCC Written Submissions In Response dated 19 October 2018, [24].[24][2017] QCAT 80.[25]Tucker v QBCC [2017] QCAT 80, [18]. Unfortunately, the passage appears to have been cited out of context. The full passage reads (underlining added):The Commission’s view… seems to be that “allowing” a claim merely encompasses accepting that the insurer has a liability. It does not extend to accepting the amount claimed as payable in respect of the claim or the basis on which that amount should be calculated.On that view, I assume, a claim would only be allowed in part if the claim related to two or more insured events and the insurer accepted liability in respect of one or more events but denied liability in respect of one or more other events.The Commission has not referred to, not have I located, any authorities or extraneous materials that shed light on what s 86(1)(h) means when it refers to a decision to disallow a claim wholly or in part.[26] [26]Tucker v QBCC [2017] QCAT 80, [17] to [19]. A full reading of the relevant passage from Tucker thus reveals that the learned Member was only recounting the Commission’s view of how the provision was to be interpreted – the same interpretation as the Commission urges the Tribunal to adopt here. The learned Member then went on to specifically reject the Commission’s view of how section 86(1)(h) is to be interpreted. It is worthwhile to set out the learned Member’s reasoning in full:On an ordinary reading of the provision, I am unable to agree that disallowing a claim is limited to denying liability and does not extend to accepting that there is a liability but declining to pay the amount claimed. The Commission had several opportunities to make submissions on the meaning of s 86(1)(h). It has not directed attention to anything in the context of s 86 or other provisions of the Act; its evident policy or legislative history; extraneous materials; previous authorities in this or other contexts; or evidence of trade or technical meanings, which would support the Commission’s more restrictive reading of s 86(1)(h).I have considered whether the presence of s 86(1)(g) – which provides separately for decisions relating to the scope of works to be carried out under an insurance policy to rectify defective work to be reviewable – indicated that s 86(1)(h) is to have a more restrictive meaning. That is to say, whether s 86(1)(g) would be unnecessary on the broader construction of s 86(1)(h).However, even on the broader view of s 86(1)(h), s 86(1)(g) has remaining work to do. It allows a claimant whose claim under a policy for rectification has been wholly accepted by the Commission – that is, where the Commission both accepts liability and accepts that rectification is appropriate – to seek review of the actual work considered to be necessary to carry out rectification work.In the absence of any other contrary indicators, I consider that the more natural characterisation of the Commission’s decision in this case is that it has not allowed Mr Tucker’s claim in full. It has disallowed the claim in part because it has not accepted Mr Tucker’s claim for rectification of the faulty work and instead has determined to pay the lesser amount calculated by reference to the reduction in value of Mr Tucker’s residence.[27][27]Tucker v QBCC [2017] QCAT 80, [23] to [27].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Riley v Queensland Building and Construction Commission [2019] QCAT 121
PARTIES:	TRACEY RILEY (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR322-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	1 May 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	The decision of the Queensland Building and Construction Commission dated 28 September 2017 is set aside and substituted with a decision to approve a claim under the Queensland Home Warranty Scheme on the basis that residential construction work is taken to have started.
CATCHWORDS:	INSURANCE – PROPERTY AND PECUNIARY LOSS INSURANCE – DOMESTIC BUILDING CONSTRUCTION INSURANCE – where insurer approved claim to maximum refund of deposit only – whether work ‘physically starts’ – where provision to be read in way that is practical, as a whole and intending to achieve balance between outcomes – where purposive interpretation preferred – where requirements of provision for whether erection or construction of footing system or slab ‘physically starts’ will vary according to whether work is for new build or renovation of existing home – where contract to renovate existing home – where contract included footing system or slab – whether work started on erection or construction of footing system or slab – where builder installed props to lift house – where installing props to lift house was integral part of erection or construction of footing system or slab – whether ‘reviewable decision’ – where substantive effect of decision to allow a claim under statutory insurance scheme was to not allow claim to maximum extent permitted by law and therefore disallow claim in part – where purpose of statutory insurance scheme is to provide assistance to consumers Acts Interpretation Act 1954 (Qld), s 14A Queensland Building and Construction Act 1991 (Qld), s 3, s 67X, s 86 Queensland Building and Construction Regulation 2003 (Qld), s 26L Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422 Harley v Department of Justice and Attorney-General [2012] QCAT 620 K & S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (1985) 157 CLR 309 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 King v QBCC [2014] QCAT 471 Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494 Mills v Meeking (1990) 169 CLR 214 Norton v Long [1967] VR 221 O’Brien v Gladstone Regional Council [2015] QCATA 82 Omae v QBSA [2012] QCAT 80 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 Tucker v QBCC [2017] QCAT 80 Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 Zappala Family Co. Pty Ltd v Brisbane City Council [2014] QCA 147
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented